ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-333/08
DATE: 2012-01-26
BETWEEN:
Timothy W. Diebel, Christine E. Diebel, Timothy Ryan Diebel and Kristen Rebecca Diebel, minors by their Litigation Guardian, Christine E. Diebel
Plaintiffs
– and –
Joanne M. Cox, Doug Cox Building Ltd., Daniel James Hordyk and Leonard J. Hordyk
Defendants
Stephen R. Schenke, for the Moving Parties, Daniel James Hordyk and Leonard J. Hordyk
Timothy McGurrin, for the Defendants, Joanne M. Cox and Doug Cox Building Ltd.
HEARD: August 3, 2011
The Honourable Mr. Justice Patrick J. Flynn
reasons for RULING ON MOTION
[ 1 ] In this motion, the Defendants Daniel James Hordyk and Leonard J. Hordyk (“Hordyk”), seek summary dismissal of the claim and cross-claims against them in this action, which arises out of a motor vehicle collision on April 27, 2006.
[ 2 ] At the hearing of the motion, I was advised that the Plaintiffs consented to the Order dismissing their action against Hordyk and I so ordered.
[ 3 ] Three motor vehicles were involved in the collision. The Defendant Cox vehicle rear-ended the stopped Plaintiffs’ vehicle and pushed it into the path of the Defendant Hordyk’s vehicle coming from the opposite direction on the roadway.
[ 4 ] So the Plaintiffs sued both the Defendants and the Defendants cross-claimed against each other.
[ 5 ] The Cox cross-claim against Hordyk alleges that the collision was caused solely as a result of the negligence of Hordyk or alternatively as a result of the Plaintiffs’ negligence.
[ 6 ] The Plaintiff served an expert report concluding that the Defendant Hordyk was travelling at 90-95 km/h prior to applying his brakes and that he reacted properly and did not have sufficient time to avoid the collision.
[ 7 ] Hordyk obtained an expert report which concluded that the speed of the Hordyk vehicle at the start of the pre-impact skid was very likely in the range of 74-82 km/h, while at impact the speed was very likely in the range of 58-67 km/h.
[ 8 ] Hordyk also obtained an expert Accident Reconstruction Report which concluded that the Plaintiff’s injuries would have been severe and similar had the Defendant Hordyk been travelling at the posted speed limit, which was 80 km/h.
[ 9 ] The Plaintiff, Timothy Diebel (“Diebel”), was himself an O.P.P. officer. He testified at his Examination for Discovery that it was customary for vehicles to be travelling 10-15 km/h over the posted speed and that he would not have ticketed someone for that speed on that stretch of highway.
[ 10 ] Cox did not obtain or offer any expert evidence. In spite of that, counsel for Cox, Mr. McGurrin, argues that there is no question as to what the Defendant Hordyk’s duty of care was that day and that it was breached.
[ 11 ] He further argues that the onus remains on the moving Defendant Hordyk to demonstrate that there is no genuine issue requiring a trial.
[ 12 ] But he asks the Court to consider the principle of proportionality throughout the Rules , which, he says, should temper the “best-foot-forward” test.
[ 13 ] Mr. McGurrin also curiously argues that with the expert Accident Reconstruction Report in the Record, Hordyk has not met the onus of showing that the increased speed differential did not cause the injuries.
[ 14 ] He bases this on his taking issue with Mr. Schenke’s conclusion that the Accident Reconstruction Report (the “Green report”) shows that the injuries “would have been just as severe”. Mr. McGurrin points out that that is not the conclusion of the Green report. Rather, he says Dr. Green’s expert conclusion is “that the injuries to Mr. Diebel would be severe and similar to his injuries as recorded if the Hordyk vehicle was travelling at the posted speed of 80 km/h prior to braking”.
[ 15 ] The problem with Mr. McGurrin’s attack on the Green report, of course, is that he himself never obtained any expert report on which to rely and accordingly, in my view, did not put his best-foot-forward.
[ 16 ] Mr. McGurrin argues that he relies on the Green report, too, and from that takes what he calls a lesson from Grade 11 physics, ie: as speed increases the likelihood of serious injury and fatality increases. And, he says that Hordyk hasn’t met the onus of showing that there was no increase of injury because of the increased speed. Mr. McGurrin further argues that it is in the interests of justice to let that issue go to trial.
[ 17 ] Of course, the issue of causation requires an expert opinion and in my view Cox has proffered none.
[ 18 ] This Court, on determining whether there is a genuine issue requiring a trial must take it that all of the evidence that will be led at trial was before me on the motion.
[ 19 ] In my view, since no new or different evidence would be led at trial, I must determine on the evidence and argument before me whether a trial is required to understand all of the unfolding of the evidence, its nuances and its impact. Or, as Chief Justice Winkler, for a five judge panel said last month in the case of Combined Ayr Mechanical Services Inc. v. Flesch , this Court is required to ask itself whether the full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by way of summary judgment, or whether this full appreciation can only be achieved by way of trial. And I conclude in this case that a trial is not required for such a full appreciation. By assessing and weighing the evidence that is already before me, I have enough to conclude that there is no genuine issue requiring a trial.
[ 20 ] It is the Cox cross-claim against Hordyk that is being tested here. And he who alleges negligence or causation must prove it. Cox must satisfy the burden of proof as to the standard, the breach and the causation.
[ 21 ] In my view, Cox cannot do that without expert evidence.
[ 22 ] Here, two expert engineering reports were obtained. While there are differences, if the Court takes the least favourable conclusions for the Defendant Hordyk from those reports, the necessary conclusion is that the collision was unavoidable for Hordyk and that he acted reasonably, even if he concedes for this motion that there was 10-15 km/h in excessive speed.
[ 23 ] The case then becomes a focused argument on causation. And the onus is on Cox to prove against Hordyk that the speed differential at the point of impact caused certain injuries that wouldn’t have resulted from a collision at the lower speed.
[ 24 ] Cox is unable to demonstrate that because he never led any expert evidence.
[ 25 ] Certainly, the view, belief or raw argument of counsel for Cox is not sufficient to “lead trump”.
[ 26 ] The Green report satisfies Hordyk’s prima facie onus to show no genuine issue requiring a trial.
[ 27 ] To respond to that the Defendant Cox had to lead expert evidence. Causation is a complicated technical issue of mechanics and injuries requiring it. That evidence is totally absent.
[ 28 ] The Defendant cannot simply wait until trial to see how the evidence unfolds. The essential purpose of summary judgment is to isolate, and then terminate claims that are factually unsupported. The judge hearing a motion for summary judgment is required to take a hard look at the evidence in determining whether there is, or is not, a genuine issue requiring a trial. A party is not entitled to rely on the possibility that more favourable facts may develop at trial. To avoid summary judgment, the responding party is required to “lead trump or risk losing” and to advance its “best case”. There is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the parties’ pleadings, but must present by way of Affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The motions judge is entitled to assume that the Record contains all evidence which parties will present if there is a trial.
[ 29 ] Accordingly, the Hordyk motion for summary dismissal of the Cox cross-claim is granted.
Costs
[ 30 ] I shall fix costs of the motion, after receiving the parties’ written submissions as follows:
i) counsel for the Defendant Hordyk, on or before February 24, 2012, shall deliver to me at my Kitchener chambers his costs submissions, consisting of his (a) Form 57-B Costs Outline (not augmented by more than two pages); (b) his Bill of Costs; together with (c) any relevant Offer(s) to Settle; and
(ii) counsel for the Defendants Cox on or before March 23, 2012 shall deliver to me at my Kitchener chambers his (a) Form 57-B Costs Outline (not augmented by more than two pages); and (b) any relevant Offer(s) to Settle.
P. J. Flynn J.
Released: January 26, 2012
COURT FILE NO.: C-333/08
DATE: 2012-01-26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Timothy W. Diebel, Christine E. Diebel, Timothy Ryan Diebel and Kristen Rebecca Diebel, minors by their Litigation Guardian, Christine E. Diebel
Plaintiffs
– and –
Joanne M. Cox, Doug Cox Building Ltd.
Daniel James Hordyk and Leonard J. Hordyk
Defendants
REASONS FOR ruling on motion
P. J. Flynn J.
Released: January 26, 2012
/lr